State v. Douglas Lee Trummer

• Decision Date: 30 September 1996
• Docket Number: 95-CO-15,96-LW-3793
• Parties: STATE OF OHIO, PLAINTIFF-APPELLEE v. DOUGLAS LEE TRUMMER, DEFENDANT-APPELLANT CASE
• Court: Ohio Court of Appeals

STATE OF OHIO, PLAINTIFF-APPELLEE v. DOUGLAS LEE TRUMMER, DEFENDANT-APPELLANT

No. 95-CO-15.

96-LW-3793 (7th)

Court of Appeals of Ohio, Seventh District Columbiana

September 30, 1996

Criminal Appeal from Columbiana County Common Pleas Court Case No. 94 CR254.

For Plaintiff-Appellee: Atty. Robert L. Herron, Prosecuting Attorney, Atty. Timothy J. McNicol, Asst. Prosecuting Attorney, Columbiana County Courthouse, 105 South Market Street, Lisbon, Ohio 44432.

For Defendant-Appellant: Atty. Melody Calhoun, 124 East Fifth Street, East Liverpool, Ohio 43920.

Hon Joseph E. O'Neill, Hon. Gene Donofrio, Hon. Edward A Cox.

OPINION

O'NEILL P.J.

The defendant-appellant appeared in the trial court charged with rape in violation of R.C. 2907.02(A)(2). Following trial to a jury, a verdict of guilty was returned and sentence was imposed. A notice of appeal was directed to this final judgment of the trial court.

The first assignment of error concerns itself with matters that occurred during the voir dire of the jury panel.

The trial judge conducted the voir dire to a great extent. Amongst the panel was a person named Keefer. During the voir dire, the trial judge read the indictment to the panel. He then asked the panel:

"* * * Now, first of all, do any of you -- does that bring any bring any recollection of -- there's been some obviously like any criminal case there's been some accounts of prior proceedings in the newspapers. Do any of you have any prior knowledge of this incident from what I have told you about it? Anybody reading about it in the paper, hearing about it at work? Mr. Johnson?

"MR. JOHNSON: Yeah, I read about it in the paper.

"THE COURT: Okay, do you recall when and what you read?

"MR. JOHNSON: No, not really. Not too much, just something I read.

"THE COURT: Okay. Do you recall what what it was that you read at that time?

"MR. JOHNSON: No, not really.

"THE COURT: Anyone else? Or hear about it from word of mouth, at work, on the street, at the beauty shop, barber shop, or any place like that? Mrs. Keefer?

"MS. KEEFER: I read about it, and the name meant something to me because my mother-in-law was a real good friend, I think the grandmother. And uh, I knew the older Mrs. Trummer, you know, and uh, the name itself. And then I knew the name because of Mrs. T's Restaurant in Washingtonville.

"THE COURT: Okay.

"MS. KEEFER: And I'm from Washingtonville, I mean, I was raised in Washingtonville, I don't live there now. But the name meant something to me.

"THE COURT: So, you have some prior contact with the Trummer family from Washingtonville basically?

"MS. KEEFER: Yeah, I knew of them.

"THE COURT: And when you saw this in the paper --

"MS. KEEFER: -- (interposing) -- Uh huh (indicating yes.)

"THE COURT: That, you kind of connected those two.

"MS. KEEFER: Uh huh (indicating yes.)

"THE COURT: Okay. Did you, first of all, did you recall any specifics about what the newspaper article said about this case?

"MS. KEEFER: I recall that I think there was two victims.

"THE COURT: All right.

"MS. KEEFER: And one of them was a younger girl.

"THE COURT: All right.

"MS. KEEFER: And I was really concerned because, I mean it bothered me because my sister had been raped.

"THE COURT: Okay.

"MS. KEEFER: Years ago.

"THE COURT: All right.

Now, your dealings, or your knowledge of the Trummer family, is that favorable or unfavorable? I mean, is that going to influence your verdict -- your decision some how?

"MS. KEEFER: No, I just knew the grandmother.

"THE COURT: Okay.

"MS. KEEFER: She was a sweet person." (Tr. 24-26).

At a later point, during the voir dire, a member of the panel asked for the judge's attention:

"MR. TRENKELBACH: Judge?

"THE COURT: Yes.

"MR. TRENKELBACH: Could I ask a question?

"THE COURT: Go ahead.

"MR. TRENKELBACH: Uh... a few years ago, I don't know the particular man here, but there was a case, there was a circus in town, or something, it was quite a few years ago, and there was a Trummer involved in some sort of a knifing or something. I just happen to think of it.

"THE COURT: Okay, were you --

"MR. TRENKELBACH: --(interposing)-- but I know if it was this individual, just the name, that's all.

"THE COURT: The name, you read about it in the paper or something?

"MR. TRENKELBACH: No, word -- by mouth, ha, ha, ha.

"THE COURT: Okay.

"MR. TRENKELBACH: Somebody said something and that was it.

"THE COURT: Okay.

"MR. TRENKELBACH: But I don't know the individuals, or anything.

"THE COURT: Okay. Just that it, all that rings a bell is the last name?

"MR. TRENKELBACH: Yeah." (Tr. 105-106).

Subsequently, Ms. Keefer was excused for cause. Mr. Trenkelbach remained as a juror for the trial.

The trial judge administered the oath to the panel. After administering the oath, he gave some pretrial instructions to the jurors. The prosecutor gave his opening statement and defendant-appellant gave his opening statement, after which the trial judge made the following statement:

"* * * Okay. Let the record reflect that at the end of the morning break, before we continue the seating of the jury Mr. Powers (counsel for defendant-appellant] approached the bench to make a motion for a mistrial based on one of the statements of one of the jurors concerning there being victims in this matter. And I overruled that motion. And at this time I will let you renew that motion, Mr. Powers, or spread it more fully on the record, however you want to do it" (Tr. 168).

The judge overruled the renewal of the motion (Tr. 169). A motion for a mistrial is untimely prior to the jury being impaneled. The correct method for correcting any irregularities prior to the jury being sworn is a motion to dismiss the entire jury panel. Regardless, the selection and qualification of juror are largely under the control of the trial court and, unless an abuse of discretion is clearly shown with respect to rulings thereon, they will not constitute ground for reversal. Berk v. Matthews (1990), 53 Ohio St.3d 161. Where a trial court is vested with such authority, reversal on appeal is justified only if it's exercise thereof constitutes an abuse of discretion. Martin v. Martin (1985), 18 Ohio St.3d 292, 294-295. In State v. Adams (1980), 62 Ohio St.2d 151, 157, the applicable standard of review was defined as follows:

"The term `abuse of discretion' connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable."

When applying this standard, an appellate court is not free to substitute its judgment for that of the trial judge. Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67. The foregoing rationale is equally applicable to decisions of the trial court to disqualify a single prospective juror as to decisions to dismiss the entire panel.

We have reviewed the entire voir dire and find that the trial judge conscientiously and extensively inquired of the remaining prospective jurors as to their ability to sit fairly and impartially and he was obviously satisfied that they could do so. Under this set of facts, we do not find that the trial judge's attitude was unreasonable, arbitrary or unconscionable and, accordingly, we do not find that there was error in denying the motion for a mistrial or the subsequent motion to set aside the panel.

Another portion of this first assignment of error deals with unresponsive testimony by two witnesses indirectly referring to prior criminal problems of the defendant-appellant.

Angela Pritchard was a witness called by the prosecution. As a part of her direct testimony, the following colloquy took place:

"Q.

Okay, and then -- then what was done with Jennifer?

"A.

Um... the cops asked her some questions. And then my mom pulled in, and then he went outside -- the cop went outside. I'm not sure what cop it was, went outside and talked to my mom, and then they both walked back in the house. And he told my -- he asked my sister to tell my mom what happened.

"Q.

Okay. Based upon that, what did your mom do?

"A.

Um ... she was talking to my sister about what happened, and she said that she wanted to take her to the emergency room, after the cop had told us that he just got out of jail." (Tr. 261-262).

There was no objection and there was no further pursuit of this statement relative to imprisonment.

Laura Ann Trummer was called as a witness by the prosecution and, during re-direct examination, the following transpired:

"Q.

How long have you known Doug?

"A.

Um... well, I guess I've known him since me and Travis have been going out, since '86.

"Q.

* * * And during that period that you've known him, would you say that he has a steady, or a regular employment history?

"A.

Uh, since he got out -- when he got out of jail --

"MR. POWERS: --(interposing)--objection--(interposing)-- he's worked.

"THE COURT: Well, sustained. The answer is ordered stricken, and the jury instructed to disregard it. The question is sustained, the objection, too. Put another question." (Tr. 430).

Evidence which tends to show that an accused has committed another crime, wholly independent of the offense for which he is on trial, is generally inadmissible. State v. Curry (1975), 43 Ohio St.2d 66, 68. The Curry court, at page 68, cited to a benchmark of the American Criminal Justice System as follows:

"A hallmark of the American criminal justice system is the principle that proof that the accused committed a crime other than the one for which he is on trial is not admissible when its sole purpose is to show the accused's propensity or inclination to commit crime.

It certainly cannot be said that the uncalled for utterances of the two witnesses, as to the appellant getting out of jail in any way were solely...